Citation Nr: 0712799
Decision Date: 05/01/07 Archive Date: 05/15/07
DOCKET NO. 04-24 784A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an initial evaluation in excess of
20 percent for type II diabetes mellitus.
2. Entitlement to an effective date earlier than January 8,
1997, for the award of service connection for type II
diabetes mellitus.
3. Entitlement to an effective date earlier than April 4,
2003, for the award of service connection for peripheral
neuropathy of the right and left lower extremities as
secondary to type II diabetes mellitus.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
September 1969.
This case initially came before the Board of Veterans'
Appeals (Board) on appeal from the Philadelphia,
Pennsylvania, Department of Veterans Affairs (VA) Regional
Office and Insurance Center (RO).
The veteran had perfected appeals for (1) entitlement to a
compensable evaluation for bilateral hearing loss and (2)
entitlement to service connection for vision loss as
secondary to type II diabetes mellitus. In September 2006,
the RO awarded the veteran a 10 percent evaluation for
bilateral hearing loss, effective July 24, 2003, which was
the date service connection was awarded. The RO issued a
supplemental statement of the case at that time that included
both these two issues and the first two issues listed on the
title page of this decision. In October 2006, the veteran
submitted a VA Form 9, Appeal to the Board, wherein he
indicated he was limiting his appeal to the first two issues
listed on the title page. For example, he checked off the
box on the form that stated, "I have read the statement of
the case and any supplemental statement of the case I
received. I am only appealing these issues," and he listed
the first two issues on the title page of the decision. This
would indicate that he withdrew the increased-rating claim
for hearing loss and service connection for vision loss.
Thus, the Board will not address those issues in this
decision.
The issue of entitlement to an effective date earlier than
April 4, 2003, for the award of service connection for
peripheral neuropathy of the right and left lower extremities
as secondary to type II diabetes mellitus is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. There is evidence of record supporting a finding that the
service-connected type II diabetes mellitus causes the
veteran to restrict his activities as of April 1, 2003.
Prior to that time, type II diabetes mellitus was manifested
by medication and a restricted diet.
2. The veteran first filed a written claim for service
connection for type II diabetes mellitus on January 8, 1997.
3. The preponderance of the evidence is against a finding
that a formal claim, informal claim, or written intent to
file a claim for service connection for type II diabetes
mellitus was filed at VA prior to January 8, 1997.
CONCLUSIONS OF LAW
1. Resolving all reasonable doubt in favor of the veteran,
the criteria for a 40 percent evaluation, but no more, for
type II diabetes mellitus have been met as of April 1, 2003,
but no earlier. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110
(West 2002 & Supp. 2006); 38 C.F.R. § 4.119, Diagnostic Code
7913 (2006).
2. The criteria for an effective date earlier than January
8, 1997, for the award of service connection for type II
diabetes mellitus have not been met. 38 U.S.C.A. § 5110
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.1, 3.155, 3.400,
3.816 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, and 5126 (West 2002 & Supp. 2006) redefined VA's duty
to assist the veteran in the development of a claim. VA
regulations for the implementation of the VCAA were codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a).
The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, the VCAA
notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Id.
In this case, there are multiple VCAA letters pertaining to
the various claims that the veteran has filed. See VCAA
letters issued in November 2003, August 2004, November 2004,
January 2005, and October 2005. The Board finds that the RO
has properly provided notice to the veteran regarding what
information and evidence was needed to substantiate the
claims on appeal, as well as what information and evidence
must be submitted by the veteran, what information and
evidence will be obtained by VA, and the need for the veteran
to advise VA of and to submit any further evidence that was
relevant to the claims. Multiple supplemental statements of
the case reflect the RO's readjudication of the claims after
providing notice. See Mayfield v. Nicholson, 19 Vet.
App. 103, 128 (2005), reversed and remanded, 444 F.3d 1328
(Fed. Cir. 2006), affirmed, 20 Vet. App. 536 (2006); see
also, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)
(the issuance of a fully compliant VCAA notification followed
by readjudication of the claim, such as in a statement of the
case or supplemental statement of the case, is sufficient to
cure a timing defect).
The veteran was not fully informed by non-decisional
documents of how disability evaluations and effective dates
are assigned; however, it is clear that he has actual
knowledge of such information and thus he cannot be
prejudiced by the failure to provide him this information.
See Bernard v. Brown, 4 Vet. App. 384 (1993). For example,
he is appealing both the evaluation and the effective date
assigned for the service-connected type II diabetes mellitus,
which indicates he fully understands that once service
connection is awarded, an effective date and evaluation are
assigned. Thus, all notice requirements were met, or the
failure to provide them has not prejudiced the veteran.
The record reflects that VA has made reasonable efforts to
obtain relevant records adequately identified by the veteran.
Specifically, the information and evidence that have been
associated with the claims file consists of post-service
medical records, both VA and private, and VA examination
reports.
In summary, the VCAA provisions have been satisfied. Any
error in the sequence of events or content of the notice is
not shown to have any effect on the case or to cause injury
to the claimant. Thus, any such error is harmless and does
not prohibit consideration of these matters on the merits.
See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159
F.3d 534, 549 (Fed. Cir. 1998). The veteran has not claimed
that VA has failed to comply with the notice requirements of
the VCAA.
II. Increased Evaluation
The veteran was awarded service connection for type II
diabetes mellitus in a March 2002 rating decision and
assigned a 20 percent evaluation under Diagnostic Code 7913.
Under that Diagnostic Code, a rating of 20 percent is
assigned for diabetes mellitus requiring insulin and a
restricted diet or an oral hypoglycemic agent and a
restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A
rating of 40 percent is assigned for diabetes mellitus
requiring insulin, a restricted diet, and regulation of
activities. Id. The veteran asserts that he warrants a
40 percent evaluation, as he has had to regulate his
activities. Regulating activities entails the "avoidance of
strenuous occupational and recreational activities." See
id.
After having carefully reviewed the evidence of record, the
Board finds that, at a minimum, the evidence is in equipoise
as to whether or not the veteran has to regulate his
activities due to the diabetes mellitus as of April 1, 2003.
However, prior to that date, the preponderance of the
evidence is against a finding that the veteran had to
regulate his activities. The reasons for these
determinations follow.
Prior to April 1, 2003, the evidence shows that the veteran
was encouraged to exercise by medical professionals and that
the veteran began exercising to assist with controlling his
diabetes mellitus. For example, a July 1998 VA outpatient
treatment report shows that the veteran reported he had been
exercising. A July 2000 VA outpatient treatment report shows
that the examiner stated the veteran's diabetes mellitus was
uncontrolled because of poor diet. She noted she explained
to the veteran the importance of diet and exercise and that
the veteran needed to do both. She again reiterated the
importance of exercise in February 2001. In May 2001, a VA
examiner stated the veteran was doing "excellent with his
weight loss" and recommended the veteran continue with the
weight loss and exercise efforts. This would indicate
medical professionals were encouraging the veteran to engage
in physical activities.
In July 2001, the veteran indicated he had looked into
joining a gym. A November 2001 VA outpatient treatment
report shows that the examiner noted the veteran had lost
almost 50 pounds, his blood sugar was "perfectly
controlled" and that the veteran was going to the gym two
times per week. In August 2002, a VA examiner noted the
veteran was encouraged to maintain his weight loss by diet
and exercise. She noted this again in December 2002. The
veteran was noted to be "very physically active" in a
separate December 2002 medical entry.
Thus, as stated above, prior to April 1, 2003, the veteran
was being encouraged to exercise by medical professionals,
and the veteran was actually exercising. This is evidence
against a finding that the veteran had to regulate his
activities. Further, there no competent evidence during this
time period where a medical professional indicated that the
veteran had to regulate his activities. Thus, a 40 percent
evaluation is not warranted from January 1997 to April 1,
2003.
However, as of April 2003, there is evidence in the record
that both substantiates a finding that the veteran has to
regulate his activities and refutes it. For example, an
April 2003 letter from a private physician indicates that he
had reviewed the veteran's "medical status" as of April 1,
2003, and stated the veteran required insulin therapy and
restricted diet to control his diabetes mellitus. He also
stated that it was more likely than not that the veteran
would develop hypoglycemia with any activity greater than
average. A July 2004 letter from a VA physician indicates
that the veteran had to control his diabetes mellitus with a
restricted diet and a combination of insulin and hypoglycemic
agents. He added that the veteran would experience
hypoglycemia as a natural consequence of the tight control of
blood glucose recommended for avoidance of diabetic
complications. He further stated that the veteran's episodes
of hypoglycemia were directly related to "vigorous exertion,
such as mowing the lawn" and that he had recommended the
veteran restrict his activities to avoid such an episode.
A February 2006 VA examination report, on the other hand,
shows that the examiner reviewed the above-described medical
opinions and he rejected their opinions, stating that it was
"an easy matter to adjust medications for varying activities
to prevent hypoglycemia." He further explained by stating
that the veteran could reduce his diabetic medication when he
knew he was going to be more active than usual to avoid
hypoglycemia.
Thus, there are two medical opinions that support the
veteran's claim that his diabetes mellitus causes him to have
to regulate his activities and a medical opinion that is
against the veteran's claim. The Board finds that it is
unable to ascribe greater weight to the differing opinions,
as the examiners have provided a rationale for their
opinions. Therefore, the Board finds that the evidence is in
equipoise. As stated above, when the evidence is in relative
equipoise as to the merits of the issue, then the benefit of
the doubt in resolving the issue is to be given to the
veteran. 38 C.F.R. § 3.102 (2006); Gilbert, 1 Vet. App. at
55. Accordingly, the Board concludes that entitlement to a
40 percent evaluation for type II diabetes mellitus is
warranted as of April 1, 2003, which is the date the private
physician indicated he had reviewed the veteran's medical
status. That is the earliest date upon which there can be a
finding that the veteran's diabetes mellitus caused him to
have to regulate his activities.
Again, prior to April 1, 2003, the preponderance of the
evidence is against a finding that the veteran was required
to regulate his activities, and an initial evaluation in
excess of 20 percent is denied. The benefit-of-the-doubt
rule is not for application for that time period. See
Gilbert, 1 Vet. App. at 55.
The evidence does not present such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards. See 38 C.F.R. §
3.321(b)(1) (2006). The overall disability picture with
respect to the service-connected type II diabetes mellitus
does not show any significant impairment beyond that
contemplated in the 20 percent and 40 percent ratings. Under
the circumstances, the Board is not required to remand this
matter to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App.
337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
III. Earlier Effective Date
The veteran claims that service connection for diabetes
mellitus should be granted as of 1995 because he filed an
informal claim for service connection for diabetes at that
time.
Generally, the effective date of an award based on a claim
for service connection is the date of receipt of the claim or
the date entitlement arose, whichever is the later date. 38
C.F.R. § 3.400; see also 38 U.S.C.A. § 5110(a) (effective
date for service connection shall not be earlier than the
date of claim). However, retroactive effective dates are
allowed in the context of a new law or liberalizing issue in
certain circumstances, but no more than one year earlier than
the date of the claim. 38 U.S.C.A. § 5110(g) (West 2002 &
Supp. 2006); 38 C.F.R. § 3.114(a) (2006). Type II diabetes
mellitus was added to the list of Agent Orange presumptive
diseases on May 8, 2001, see 66 Fed. Reg. 23,166 (May 8,
2001), which post dates the veteran's current effective date
for the award of service connection.
As correctly determined by the RO, when it awarded service
connection for type II diabetes mellitus, it applied the
holding in Nehmer v. United States Veterans Administration,
32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) in assigning the
veteran the January 8, 1997, effective date. The Nehmer
stipulations are incorporated under 38 C.F.R. § 3.816. A
Nehmer class member is defined as a Vietnam veteran who has a
"covered herbicide disease," which includes diabetes
mellitus and its complications. 38 C.F.R. § 38 C.F.R. §
3.816(b)(1)(i) (2006).
If a Nehmer class member's claim for disability compensation
for the covered herbicide disease was either pending before
VA on May 3, 1989, or was received by VA between that date
and the effective date of the statute or regulation
establishing a presumption of service connection for the
covered disease, here, May 8, 2001, the effective date of the
award will be the later of the date such claim was received
by VA or the date the disability arose. 38 C.F.R. §
3.816(c)(2) (2006).
A claim will be considered a claim for compensation for a
particular covered herbicide disease if either of the
following is met: (i) the application and other supporting
statements and submissions may reasonably be viewed, under
the standards ordinarily governing compensation claims, as
indicating an intent to apply for compensation for the
covered herbicide disability, see also 38 C.F.R. § 3.1(p),
3.155(a) (both providing that an informal claim must show an
intent to file a claim); or (ii) VA issued a decision on the
claim, between May 3, 1989 and, here, May 8, 2001, in which
VA denied compensation for a disease that reasonably may be
construed as the same covered herbicide disease for which
compensation has been awarded. 38 C.F.R. § 3.816(c)(2)(i),
(ii).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Review of the claims file shows that the veteran was
diagnosed with diabetes mellitus as early as 1995, which is
shown in VA treatment records. A December 1996 letter to the
veteran from Dr. C.M.B. indicates that the veteran had
diabetes mellitus, which had been difficult to control. The
veteran submitted a December 1996 letter on January 8, 1997,
which was when he filed a claim for service connection for
diabetes mellitus. This is the current effective date for
the award of service connection for type II diabetes
mellitus.
The veteran has not contended, nor does the evidence show,
that there was a claim for diabetes pending at VA on May 3,
1989; however, the veteran's claim was received during the
specified Nehmer time period between May 1989 and May 2001,
i.e., on January 8, 1997. Applying the regulation to the
facts in this case, that is the correct effective date for
the award of service connection for diabetes mellitus.
38 C.F.R. § 3.816(c)(2). Again, the regulation states that
the effective date will be the later date between the date of
claim and the date the disability arose. The veteran has
submitted a June 2005 letter from a private physician,
wherein the physician stated that the veteran had diabetes
mellitus as early as 1995. He also submitted an undated
private medical record wherein the private physician also
stated the veteran had been diagnosed with diabetes mellitus
in 1995. The veteran had submitted an April 2003 letter from
a private physician, who stated the veteran had been
diagnosed with type II diabetes mellitus on "4-21-05,"
which appears to be a typographical error since that date had
not occurred at the time the letter was written. He most
likely meant April 1995. The Board acknowledges these
letters and the fact that the veteran was diagnosed with
diabetes mellitus prior to January 8, 1997; however, the fact
remains that he did not submit a claim based upon that
disorder until January 8, 1997. Id. An earlier effective
date is not available.
The veteran has contended that he intended to submit a claim
for service connection for diabetes mellitus prior to January
1997 and has submitted a copy of a document, dated April 30,
1995, signed by him and addressed to VA, wherein he stated he
had been diagnosed with diabetes and wanted to file a claim
for this disability. He noted that his representative had
indicated he would file a formal claim on his behalf
"later." However, the claims file does not show that such
document was ever submitted to VA nor does it show that the
veteran's representative submitted a formal claim for service
connection for diabetes mellitus soon thereafter.
The Board has reviewed the evidence in the claims file and
finds that the preponderance of the evidence is against a
finding that the veteran submitted a claim for diabetes
mellitus prior to January 8, 1997. The veteran was awarded
100 percent for post-traumatic stress disorder in a November
1994 rating decision. The next document in the claims file
submitted by the veteran is a VA Form 21-8940, Veteran's
Application for Increased Compensation Based Upon
Unemployability, which was received in August 1996. In an
August 1996 letter, VA informed the veteran that he had been
informed in November 1994 that he was awarded a total
disability rating for his service-connected conditions and
that unemployability was not available. The following month,
the veteran asked if he could review his claims file, which
he did on November 19, 1996. See notation on letter from the
veteran dated September 12, 1996. Had the veteran intended
to file a claim for service connection for diabetes mellitus
back in 1995, he would have seen that such claim had not been
received by VA at the time he reviewed his claims file in
November 1996, and it seems likely he would have noted such
at the time he submitted his claim for diabetes mellitus in
January 1997. The January 1997 claim made no mention of a
prior claim being submitted.
Essentially, there is a lack of evidence in the record to
show that a claim for compensation for diabetes mellitus was
actually filed with VA back in April 1995. See 38 C.F.R. §
3.151(a) (a specific claim in the form prescribed by the
Secretary must be filed in order for benefits to be paid to
any individual under the laws administered by VA); 38 C.F.R.
§ 3.155 (addressing informal claims). The record, instead,
shows that the first time the veteran expressed an intent to
file a claim for service connection for diabetes mellitus was
on January 8, 1997, which was through his representative. At
the time this claim was submitted, the veteran was
attributing diabetes mellitus (and other disabilities) to his
service-connected post-traumatic stress disorder. The
representative attached several documents to support the
claims, which did not include the veteran's April 1995 letter
or a comment by the representative that this January 1997
claim was a follow-up to an informal claim that had been
previously submitted. This further supports the Board's
belief that the veteran first filed a claim for service
connection for diabetes mellitus on January 8, 1997, as there
is nothing in the record to show that the veteran submitted a
written intent to file a claim for service connection for
diabetes mellitus prior to January 1997.
Therefore, the preponderance of the evidence is against the
showing that the veteran filed a claim for service connection
for diabetes mellitus prior to January 8, 1997, and an
effective date going back to April 1995 for the award of
service connection cannot be granted. The benefit-of-the-
doubt rule is not for application. See Gilbert, 1 Vet.
App. at 55.
ORDER
A 40 percent evaluation, but no more, for type II diabetes
mellitus is granted, effective April 1, 2003, but no earlier,
subject to the controlling regulations applicable to the
payment of monetary benefits.
An effective date earlier than January 8, 1997, for the award
of service connection for type II diabetes mellitus is
denied.
REMAND
In an April 2005 rating decision, the RO awarded service
connection for peripheral neuropathy of the right and left
lower extremities and assigned 10 percent evaluations,
effective April 4, 2003. In July 2005, the veteran expressed
disagreement with the effective date assigned. The RO then
issued a rating decision in January 2006 denying an earlier
effective date for the award of service connection for
peripheral neuropathy of the right and left lower
extremities. In March 2006, the veteran again disagreed with
the effective date assigned. There has been no statement of
the case on this issue. See Manlincon v. West, 12 Vet. App.
238 (1999).
The Board notes that in order for it to have jurisdiction of
a claim, there needs to be a rating decision, a notice of
disagreement, a statement of the case, and a substantive
appeal addressing the issue. 38 C.F.R. § 20.200 (2006).
Therefore, it cannot take jurisdiction of these claims until
the veteran perfects his appeal.
Accordingly, the case is REMANDED for the following action:
Furnish the veteran and his
representative with a statement of the
case as to the claims of (i) entitlement
to an effective date earlier than April
4, 2003, for the award of service
connection for peripheral neuropathy of
the right and left lower extremities.
The statement of the case should include
all relevant law and regulations
pertaining to the claim. To complete the
appeal, a substantive appeal must be
timely filed.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs